WYLIE V. PEARSON.
punishment inflicted, but in modern times the act itself, its nature, purpose, and effect are looked at for the purpose of determining whether it is infamollS or not. U. So v. Yate.9, 6 FED. REP.861. See People v. Whipple, 9 Cow. 708. In the absence of some positive provision in a statute, the presumption is against an intention to make. an offence an infamous crime. U. S. v. Cross, 1 McAlI. 149. The crime of passing counterfeit trade dollars is not an infa· mous crime. U. S. v. Yates, 6 FED. REP. 861.-[ED.
(Oirouit Court, S. lJ. New York. February 28,1882.)
MAIL MATTER-STOLEN BONDS-RECOVERY FROM POSTMASTER.
Where bonds, the property of plaintiff, had been stolen from a bank and afterwards deposited in the post-office at New York for tr\lnsmission through the mail, but were returned, the addressee not being found, and were held by the postmaster under instructions from the department to await legal action on the part of the bank, held, that plaintiff could recover such bonds from the postmaster.
At Law. George H. Adams, for plaintiff. Samuel B. Clarke, Asst. S. Atty., for defendant. SHIPMAN, D. J. This is an action at law, which was tried by the court, a jury having been waived by written stipulation of the parties. The facts in the case are as follows: .
On March 24, 1881, a person representing himself to be E. R. McI,ean, of 220 Broadway, New York city, deposited in the New York city post-otlice the four bonds described in the complaint, of the value of $4,400, for transmission by mail, by registered letter directed to J. Grey, at a specified street and number in London, England. These bonds were then and ever since have been the property of the plaintiff, and had been stolen by burglars from the banking-house of the Northampton National Bank, to which she had entrusted them for safe-keeping. A large amount of other property was stolen at the Bame time. Neither of the persons purporting to be McLean and Grey had any rightful title to the bonds, but knew that they were stolen property, and were confederates and accessories in the robbery. The envelope containing the bonds was sent by mail in due course to Lon. don. Grey was not found. The package was returned to the dead-letter office in ·Washington, with the words" gone away" indorsed on the envelope as the reason for non-delivery. The package was then opened, and both bonds and envelope were sent to the defendant, who was and is the postmaster at the city of New York, with the letters of instruction recited in the answer. Me"Reported by
s. Nelson While, Esq .· of the New York bur.
Lean could not be found, his address was fictitious, and, upon investigation by the deputies of the defendant, the bonds were found to be a part of thosq which had been stolen from the said Northampton Bank. The post-office department was informed of the facts, in reply to its letter dated July 25, 1881, and on July 27, 1881, the defendant received the following and final instructions from the department: "Instead of returning the said to this office, as requested in my communication of the twenty-fifth inst., you are hereby authorized to detain it, subject to such legal action as may be taken by the Northampton National Bank to recover the stolen bonds." ... ... * The bonds were subsequently replevied in the present suit, and are in the possession of the plaintiff.
I find the issues for the plaintiff, and therefore find for the said plaintiff to retain possession of the bonds described in her complaint, and to recover of the defendant the Bum of six cents damages, and direct that judgment be entered accordingly. The facts in the case are very exceptional, and do not raise the question of a right to replevy property which is in the custody of a postmaster for transmission by mail. It is not intended to decide that replevin will lie against a postmaster in favor of a person, neither the sender of the letter nor the one to whom it is addressed, to gain possession of let· ters or packages while they are in a post-office for transmission by mail, or while they are being held in a post-office in the usual and ordinary course of business for delivery to the party addressed. These bonds were not, at the time of the replevin, ordinary mail mat· ter for transmission by mail, but were held by the defendant, under the instructions of the department, to await the result of the legal action of the rightful owner.
LOVEJOYV. lURTFOlID .FIRE INS. CO.
and others v.
FIRE INs. Co. and otners.
(Oircuit Oourt, N. D. Rlinois. February 14,1882.)
If, at the time process of garnishment was served, the insurance companies had waived the execution of proofs of, loss, then the action could be maintained; but if they had not waived it, then garnishment could not be sust&ined.
On the second of December, 1880, a fire occurred at Topeka, Kansas; by which the stock of goods then in the store of the defendants C. H. Lovejoy & Co. was destroyed. The· owners were insured in various amounts by the companies named. At different times in December, 1880, and the following months of January and Febru. but prior to the commtlncement of the attachment Buits, efforts werS made by the assured to adjust as a total loss, but without result. On the twenty-sixth of February, 1881, before the assured had rendered the proofs of loss called for by the policies as a condition precedent to liability, the creditors of O. H. Lovejoy & Co., resident at St. Louis, Milwaukee and Chicago, brought the present attachment suits on the ground of non-residence of the principal defendants. The insurance companies were garnished on the twenty-eighth of February, and severally answered, denying any indebtedness. Aside from the above services on the companies there was no levy or 'service of the writs of attachment. The defendants did not appear, and sundry "proofs of loss" having been filed with the companies by the assured subsequent to the date of service of the garnishment, the plaintiffs in attachment took judgments by default against C. H. Lovejoy & Co., and subsequently brought on for trial the issues raised by their replications to the answers of the garnishees. At the close of the case for plaintiffs the garnishees moved the court to direct the jury to return a verdict for the garnishees. This motion was taken under advisement, to be decided when the entire evidence on both sides should have been introduced. The evidence being all in, the garnishees renewed their application, and thereupon the court sustained the motion upon the grounds stated in the following opinion. BLODGETT, D. J., (orally.) The first question that is made in the case, which applies to all the companies that are defending here, is whether this garnishment proceeding is properly beguu,-whether the necessary facts have been disclosed by the testimony to show that the